USDA Decides GM-Alfalfa Is No Little Rascal

Alfalfa (Medicago sativa) is one of the most important crop plants in the world. Its uses range from cattle forage to human food. Worldwide, it is cultivated more than any other legume crop. Monsanto Corporation developed a patented genetically modified ("GM") variety of alfalfa - Roundup Ready Alfalfa - that is resistant to glyphosate (N-(phosphonomethyl) glycine), a powerful herbicide used to eliminate weeds from agricultural fields.

As discussed earlier at LEXVIVO, Roundup Ready Alfalfa has inspired considerable legal controversy - controversy that has already reached the U.S. Supreme Court. On January 27, 2011, the United States Department of Agriculture ("USDA"), after completing an Environmental Impact Statement, announced in a press release that it has opted for full deregulation of Roundup Ready Alfalfa.  This decision will place no more restrictions on Monsanto's GM-alfalfa than on non-GM varieties.  As the USDA's press release relates,

"After conducting a thorough and transparent examination of alfalfa through a multi-alternative environmental impact statement (EIS) and several public comment opportunities, APHIS has determined that Roundup Ready alfalfa is as safe as traditionally bred alfalfa," Agriculture Secretary Tom Vilsack said.

This decision comes on the heels of a January 19, 2011, letter that U.S. Representative Frank Lucas (R-Okla.) and U.S. Senators Saxby Chambliss (R-Ga.) and Pat Roberts (R-Kansas) sent to USDA Secretary Tom Vilsack, warning that taking into account non-scientific factors in the regulation of GM-alfalfa would exceed the statutory authority granted to his agency by the Plant Protection Act:

It is unfortunate that those critical of the technology have decided to litigate and as you rightly point out that courts may unwisely interfere in normal commerce. However, the alternative you propose and include in the EIS is equally disturbing since it politicizes the regulatory process and goes beyond your statutory authority and indeed Congress’ intent in the Plant Protection Act (PPA). The PPA requires the Secretary to make a scientific determination if the product under review is a plant pest (7 U.S.C. 7711(c)(3)). If the final decision is that the product is not a plant pest, nor would the movement of the product in question impose the risk of dissemination of a plant pest, then USDA has no authority to impose further restrictions (7 U.S.C. 7712(a)).

Further legal challenges of GM-alfalfa are certain, especially from organic farmers who worry that GM-pollen will infect the their non-GM crops.  As a signal that it takes the growing war between advocates of agricultural biotechnology and organic farming seriously, USDA has decided to resurrect its Advisory Committee on Biotechnology and 21st Century Agriculture and the National Genetic Resources Advisory Committee to

tackle a broad range of issues, from ensuring the availability of high quality seed, to helping ensure that growers have access to the best tools available to support their production choices, to whether risk management and indemnification options can play a role.

Victory in this battle goes to agricultural biotechnology, but the wider war will assuredly continue.  In the meantime, the Food and Agriculture Organization of the United Nations ("FAO") has reported that food prices reached near-record heights in 2010.

More agricultural law at LEXVIVO.

The Pickle Project

I just learned about a unique food, agriculture, and culture project spearheaded by two Fulbright Research Fellows, Sarah Crow and Linda Norris. Both had the opportunity to live in Ukraine, a fascinating country with long standing food and agricultural traditions. Building upon their experiences, Sarah and Linda have developed the Pickle Project, a multifaceted effort that observes the Ukrainian food system and uses it "as a lens for exploring sustainability, community and change."

This is how they describe their work:

The recent designation of several foods and food practices by UNESCO as “intangible cultural heritage of humanity” illustrates a growing recognition of the importance of food and food systems. For food is not merely a commodity but also a symbol of identity and a direct reflection of the human condition and our natural environment. As noted food scholar Marion Nestle suggests, food makes abstractions real and the political personal (2009). This arena of research is underdeveloped in Ukraine, a nation, landscape and culture with an intimate and rich history related to food production, scarcity, diversity and identity.

The Pickle Project ventures to illuminate those connections in contemporary Ukraine, through personal stories, profiles and recipes, and share them with diverse audiences using multiple vehicles. These include social media, The Pickle Project blog, Twitter (you can follow us @PickleProject) and Facebook networks but also through the development of innovative traveling exhibitions and programs, that would tour the United States and Ukraine. This suite of methods is designed to stimulate community conversations about the interesting and increasingly relevant issues of food, culture and sustainability.

My husband and fellow Ag Law blogger, Christopher Kelley, was a Fulbright Scholar in Ukraine five years ago, and his experiences there led to rich connections with this fascinating country and its wonderful people.  From my visits and the Ukrainians that are our friends, I can attest to the intimate connections and the deep culture and tradition associated with Ukrainian food.  Sarah and Linda may really be on to something here - particularly, as Ukraine's rich agricultural land comes under increased pressure for foreign control.

In addition to following the links above, check out their Kickstarter page. They are raising funds for the project and are close to their goal - although they have a February 1 deadline.

Innovation As An Innovation

On January 25, 2011, U.S. President Barack Obama delivered a State of the Union Address packed with references to innovation.  In fact, he mentioned "innovation" no fewer than nine times during his speech.  In each of his 2010 and 2009 Addresses, President Obama mentioned innovation only twice.  During his entire eight years as U.S. President, George W. Bush mentioned innovation quite sparingly in State of the Union Addresses:  twice each in 2006 and 2003.  Even technophile President William J. Clinton employed the word only four times in his two terms in office.  So, why is innovation suddenly so popular with President Obama?

There are a number of possible explanations for why innovation has caught the presidential, and national, Zeitgeist.  One reason is that technological innovation is closely associated with economic growth.  From Robert Solow's neoclassical growth model, which estimated that about four fifths of productivity gains stem from new technology, to Paul Romer's suggestion that investments in research and development may be particularly effective means of encouraging technological improvements, much modern economic thought recommends the promotion of innovation as an especially wise policy goal.

Another motivation is the fashionable fear that the United States is at risk from being overtaken by China, whose students (along with students from South Korea, Finland, Canada, and quite a few other countries) recently outperformed their American colleagues in science, mathematics, and other subjects in the Organisation for Economic Cooperation and Development's Programme for International Student Assessment ("PISA").  The sensation caused several weeks ago by Amy Chua's publication of Battle Hymn of the Tiger Mother, in which she critiques the results of what she pejoratively terms "Western" parenting, tapped this Angst and found a gusher.

A third explanation may arise from a dawning realization that classical models of innovation may not be succeeding as well as they once did.  Witness the National Institutes of Health's new National Center for Advancing Translational Sciences ("NCATS"), whose euphemistic goal, "to leverage science to bring new ideas and materials to the attention of industry by demonstrating their value," is a reaction to the worrying relative decline in the rate of discovery, development, and market-availability of new pharmaceutical drugs, coupled with a looming "patent cliff" off which many existing medicines are beginning to tumble.

Finally, the fruits of innovation, such as the iPad, the Nissan Leaf, and Roundup Ready alfalfa, are usually viewed as cool, compelling, and a welcome distraction from the distressing realities of slow economic growth and high unemployment.  Where the Romans had panem et circenses, one can now enjoy the latest update of Angry Birds.

More agricultural law at LEXVIVO.

New Report: Food Safety and Liability Insurance

Food safety and related liability issues can be a particular concern for small and limited resource producers who want to sell local food directly to institutions such as colleges, universities, and public schools. The Community Food Security Coalition just released a new report on this subject called Food Safety and Liability Insurance: Emerging Issues for Farmers and Institutions.  It is designed to assist producers, agricultural professionals, and food service operators.  The reports is available for free download.  The publication was funded through the USDA Risk Management Agency.

This new resource was brought to my attention by Marne Coit of Greenfield Research & Consulting LLC, who assisted with the report.  Marne is a graduate of the LL.M. Program in Agricultural & Food Law and previously served as a Staff Attorney with the National Agricultural Law Center.

Food, Farming & Sustainability

I am pleased to announce that my new casebook, Food, Farming & Sustainability: Readings in Agricultural Law, has been published by Carolina Press.  I even found it posted on Amazon.

It is my hope that this casebook will encourage more law professors to teach, and more law students to enroll in, courses that explore our agricultural laws and the policies surrounding our food system.  And, as it attempts to address some of the concerns about our food system, I hope that it leads to thoughtful and constructive discussion.

Here is the description of the book, as provided on the back cover:

Agricultural law is the study of the unique network of laws that apply to the production, marketing, and sale of agricultural products—the food we eat, the natural fibers we wear, and increasingly, the bio-fuels that run our vehicles.

Traditionally, agriculture has been favored with exemptions, exceptions, and special rules that reflect the uniqueness and the political power of the industry. In recent years, the study of agricultural law has expanded beyond its traditional scope to include issues of food safety and sustainability. Popular interest in agriculture has increased as consumers seek to know more about their food and where it comes from.

This book provides an issues-based study of these complex topics. It is divided into units designed to introduce some of the critical legal issues facing the industry and consumers today including: federal farm programs, the structure of farms and industrialized agriculture, environmental concerns, migrant labor issues, farm animal welfare, agricultural commercial law, and other topics. The book provides a mix of readings in law and policy. From its initial discussion of “agricultural exceptionalism” to its concluding remarks on the future of our food system, the book is certain to spark thoughtful dialogue.

The book is "[d]edicated to my grandparents  and my parents, for affording me the great opportunity to be raised on a  family farm; to my sister and her family for the care that they provide in preserving that farm; to my husband and colleague, Christopher  Kelley for his inspiration and dedication to excellence; and to all of our past and future students in the LL.M. Program in Agricultural & Food Law at the University of Arkansas School of Law."

Particular thanks is extended to this year's and last year's class of LL.M. candidates for their patience and support while I worked on the book.  Their energy and their interest in agricultural and food law was very inspiring!

The Foody Blues - FDA Of Future Passed

On January 4, 2011, President Obama signed into law the Food Safety Modernization Act ("FSMA"), which the U.S. Senate and House both passed in late 2010. The FSMA amends the existing Food, Drug and Cosmetics Act in numerous ways, but four changes stand out in particular:

(1) FDA must develop and employ science-based standards that govern the growing and harvesting of fruits and vegetables, and these standards must take into account both anthropogenic and "natural" risks to food safety,

(2) Food facilities must produce written assessments that identify risks to the food they handle, and specify prophylactic measures to minimum these identified risks,

(3) FDA must greatly step up its inspections of food facilities, both in the U.S. and abroad, and

(4) FDA will now possess enhanced recall authority, allowing the agency to force recalls of unsafe food if the producer of the food fails to do so voluntarily, and will be able to suspend registration of food facilities connected to unsafe food.

Here is how Food and Drugs Commissioner Margaret Hamburg describes the new FSMA: 

Each year, foodborne illness strikes 48 million Americans, hospitalizing a hundred thousand and killing thousands.  I thank the President and members of Congress for recognizing that the burden that foodborne illness places on the American people is too great, and for taking this action.

The historic legislation the President will sign tomorrow directs the Food and Drug Administration, working with a wide range of public and private partners, to build a new system of food safety oversight – one focused on applying, more comprehensively than ever, the best available science and good common sense to prevent the problems that can make people sick...

This law represents a sea change for food safety in America, bringing a new focus on prevention, and I expect that in the coming years it will have a dramatic and positive effect on the safety of the food supply.

Two of the greatest challenges faced by the FDA in implementing the FSMA will be time and money.  To meet the aggressive schedule of inspections and other actions mandated by the FSMA, the agency will have to hire many new employees with expensive scientific credentials.  The new Republican-dominated House may balk at supplying any new funds in the new era of austerity they have announced.  However, food safety is a very popular political issue, and woe betide the future electoral prospects of any politician seen to be advocating less of it.

More agricultural law at LEXVIVO.

OU Law School New LL.M. Program

The University of Oklahoma Announces the John B. Turner LL.M. Program in Energy, Natural Resources and Indigenous Peoples

The John B. Turner LL.M Program extends the University of Oklahoma's long history of excellence and expertise in law relating to energy, natural resources, and American Indians and all indigenous peoples. The first class will enter the one-year program in late August 2011. For more information, including application forms, see http://www.law.ou.edu/llm.

Sustainable development of all forms of energy, water, and agricultural resources will continue to be challenging and vitally important to the global economy. Increasingly, development occurs on or near lands claimed by indigenous populations. While some native peoples may enjoy sovereign or quasi-sovereign rights to these lands, they often have little or no control, receive few benefits, and yet suffer the bulk of environmental and social problems that may arise. This program is designed to be flexible, allowing international and American students to study in all three areas or concentrate their studies in any one or two of these areas.

The John B. Turner LL.M. program offers a combination of courses available only at the University of Oklahoma. In addition to studying with the outstanding faculty at the College of Law, students have unique interdisciplinary opportunities to receive credit for related courses offered by other departments. The LL.M. program also includes guest lectures, field trips, and social and networking opportunities. The College of Law has one of the most favorable faculty-student ratios among law schools world-wide, so students will enjoy unsurpassed opportunities for close interaction with full-time faculty.

Legendary professors, including Richard Hemingway, Victor Kulp, Eugene Kuntz, Maurice Merrill, Joe Rarick, and Rennard Strickland have made the College of Law a national leader in energy, natural resources, and indigenous peoples. Professors who continue this tradition include Owen Anderson (oil and gas law, both domestic and international), Taiawagi Helton (environmental law and Indian natural resources law), Drew Kershen (water law, agricultural law, international bio-technology law), Peter Krug (international and comparative law), Emily Meazell (energy law), Joyce Palomar (land tenure security, real estate development and land use law), Lindsay Robertson (Indian law, indigenous peoples, human rights law), and Murray Tabb (environmental law). In addition, the College is fortunate to have several distinguished adjunct and visiting professors who teach highly specialized classes in this program area.

To earn an LL.M. degree, students are required to be present in residence at OU attending classes and must successfully complete 24 units of credit over two semesters of study, subject to possible extension for cause. All students must take 18 hours of courses (15 if they are approved by the LLM Committee for a thesis) in the areas of energy, natural resources, and indigenous peoples and the balance in approved electives. Most international students will be required to take a 1-credit class on American Legal Systems and a 1-credit class on Legal Research. For course information, see
http://jay.law.ou.edu/studentinfo/coursedescription/llmcourses.cfm

The University of Oklahoma College of Law is located on a beautiful bicycle-friendly campus centered in the heart of Norman, Oklahoma. Norman is located approximately 30 minutes from Will Rogers International Airport in Oklahoma City, Oklahoma. Norman is 180 miles north of Dallas, Texas. Norman was recently ranked #6 in terms of livability in a recent Money magazine survey. Nearby Oklahoma City, the state's Capital, was ranked America's most affordable city by Forbes magazine, which praised the metro area for its high quality of life.

House Passes The FDA Food Safety Modernization Act

On December 21, 2010, the U.S. House of Representatives passed the "FDA Food Safety Modernization Act" by a decisive 215 to 144 vote margin.  As discussed yesterday, in "Senate Votes For Mom And (Safer) Apple Pie," this legislation represents the most significant overhaul to food-related regulation in the history of the Food, Drug, and Cosmetic Act.  When President Obama signs these amendments into law, as he is sure to do, LEXVIVO will discuss further the new paradigm of food safety regulation this Act will represent.

More agricultural law at LEXVIVO.

Senate Votes For Mom And (Safer) Apple Pie

In a surprise to many, late on December 19, 2010, the United States Senate unanimously passed a modified version of S.510, the "FDA Food Safety Modernization Act," by voice vote.  If passed by the House, this bill will constitute perhaps the most significant overhaul to the food regulation provisions of the Food, Drug, and Cosmetic Act since its inception in 1938.  Soon after becoming President in 2009, Barack Obama came under intense pressure to improve regulation of food safety in the wake of a deadly Salmonella outbreak that contaminated peanut butter and melamine contamination of food imports from China.  Titles I and II attempt to strengthen the capacity of the Food and Drug Administration to avoid food safety problems, and Title III focuses on the safety of food imported from other countries.  LEXVIVO will provide additional coverage of this bill if it is approved by the House during this session of Congress, which approval now seems likely.  President Obama strongly supports this bill, assuring that it will become law if passed by the House.

More agricultural law at LEXVIVO.

Patently Innovative China

China long ago became a manufacturing superpower.  However, its earlier-industrialized competitors have consoled themselves that China is merely a copycat of others' innovation.  The government of China is not content with such a role.  Even though the evidence that patents best spur innovation is far from conclusive, the Sunday New York Times today (January 2, 2011) reports that patents are a central pillar in the official Chinese strategy to foster a culture of home-grown invention.

The article, "When Innovation, Too, Is Made in China," references a document entitled "National Patent Development Strategy (2011-2020)," recently published by the State Intellectual Property Office of China ("SIPO"), and suggests that China plans to double its complement of patent examiners and to increase its utility patent filings to an impressive 1,000,000 by 2015.  By contrast, the United States Patent and Trademark Office ("USPTO") employed 6,413 utility, plant, and reissue patent examiners in the fourth quarter of 2009, and, during the whole of 2009, received 456,106 utility patent applications, of which 49.3% had a U.S. resident as first-listed inventor.  As the article also notes, to increase patent filings by its own residents, "China has introduced an array of incentives [including] cash bonuses, better housing for individual filers and tax breaks for companies that are prolific patent producers."

China may find, as other countries have before, that the connections between patents and innovation remain less than fully elucidated.  As Eric von Hippel has persuasively demonstrated, much innovation is either open (that is, non-proprietary), generated by users rather than producers, or both.  James Besson and Michael Meurer have shown that the relative costs and benefits of patents differ between fields, and the costs may sometimes outweigh the benefits.  And, the results of experiments (for example, see the article "Patents and the Regress of Useful Arts," published in the Columbia Science and Technology Law Review (2009)) by Profs. Bill Tomlinson and Andrew W. Torrance (author of LEXVIVO) using a variety of simplified computer-based simulations of patent systems have found relatively greater rates of innovation in systems lacking patent protection (for more, see the August 16, 2010, Google Tech Talk "The Patent Game:  Experiments in the Cathedral of Law").

Patent law, patent economics, and the innovation process are all exceedingly complicated.  Even an otherwise fascinating New York Times article stumbles on specifics, stating that, unlike China, "[i]n the American system, there are no utility patents," despite the fact the United States patent system does, indeed, offer utility patents;  where China does differ is in offering petty patents ("utility model" protection) for minor incremental innovations.  Better public understanding of the specifics of patent systems would help improve policy debates about innovation.  More fundamentally, much additional research will be required to determine the conditions under which patent systems best spur innovation.  By setting an aggressive set of patenting goals, China is clearly signaling its intentions to become a patent superpower.  However, achieving the status of innovation superpower may require more than patents alone.

More agricultural law at LEXVIVO.